Javier Guerra Portillo v. Matthew Whitaker ( 2019 )

Case: 18-60122 Document: 00514801418 Page: 1 Date Filed: 01/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-60122 January 18, 2019
Summary Calendar
Lyle W. Cayce
Clerk
JAVIER ENRIQUE GUERRA PORTILLO; MARIELA JOSEFINA PARRA
GARCIA; JONAS DAVID GUERRA PARRA; JEANVIER ENMANUEL
GUERRA PARRA,
Petitioners
v.
MATTHEW G. WHITAKER, Acting U.S. Attorney General,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 352 525
BIA No. A087 352 526
BIA No. A087 352 527
BIA No. A087 352 528
Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Javier Enrique Guerra Portillo, along with his wife, Mariela Josefina
Parra Garcia, and their two children, Jonas David Guerra Parra and Jeanvier
Enmanuel Guerra Parra, petition this court for review of the decision of the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60122 Document: 00514801418 Page: 2 Date Filed: 01/18/2019
No. 18-60122
Board of Immigration Appeals (BIA) denying their motion to reopen. They
argue that the BIA erred in concluding that they did not present new, material
evidence showing that they would be singled out for persecution based on their
Jehovah’s Witness religion and their political neutrality. They also argue that
the BIA erred in concluding that they failed to make a prima facie showing of
eligibility for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT).
This court reviews the denial of a motion to reopen under the “highly
deferential abuse-of-discretion standard.” Lugo-Resendez v. Lynch, 831 F.3d
337, 340 (5th Cir. 2016) (internal quotation marks and citation omitted). The
court will “uphold the decision if it ‘is not capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so irrational that it is
arbitrary rather than the result of any perceptible rational approach.’” Lowe
v. Sessions, 872 F.3d 713, 715 (5th Cir. 2017) (citation omitted). The court will
affirm the BIA’s factual findings “unless the evidence ‘compels a contrary
conclusion.’” Nunez v. Sessions, 882 F.3d 499, 505 (5th Cir. 2018) (citation
omitted.)
A petitioner may file a motion to reopen beyond the 90-day limitations
period if the motion is based on changed country conditions and the petitioner
submits “new facts” supported by “material” evidence that was unavailable or
undiscoverable at the prior proceeding. 8 C.F.R. § 1003.2(c)(1)-(3); 8 U.S.C.
§ 1229a(c)(7)(C)(ii). To establish changed country conditions, the petitioner
must present evidence showing “a meaningful comparison” between conditions
in his home country at the time of the motion to reopen versus the time of the
removal hearing. Nunez, 882 F.3d at 508.
The BIA did not abuse its discretion in denying the petitioners’ motion
to reopen. See Lugo-Resendez, 831 F.3d at 340. Although they submitted
2
Case: 18-60122 Document: 00514801418 Page: 3 Date Filed: 01/18/2019
No. 18-60122
evidence concerning the political and economic turmoil in Venezuela, they did
not present new, material evidence demonstrating that they would be
individually singled out for persecution based on their Jehovah’s Witness
religion or their political neutrality. They did present evidence to support their
claim that the Government had threatened to cut off food supplies to anti-
government protestors; however, this evidence did not establish that the
Government had actually done so or that it would cut off food supplies to
citizens who remained politically neutral. Other than his own affidavit,
Guerra Portillo also did not present evidence or sources to support his
allegation that the Government had implemented a system of providing
identification documents only to its supporters, which are required to obtain
food and medicine. While the petitioners argue that the BIA failed to consider
the entire record, they did not identify any specific evidence in the record that
directly supports their claim that they would be targeted because of their
religious beliefs or their political neutrality. Because the BIA did not abuse its
discretion in denying their motion to reopen, this court need not reach the
petitioners’ claims concerning their eligibility for asylum, withholding of
removal, and relief under the Convention Against Torture. See Ramos-Lopez
v. Lynch, 823 F.3d 1024, 1026 (5th Cir. 2016); Ogbemudia v. INS, 988 F.2d 595,
601 (5th Cir. 1993).
Accordingly, the petition for review is DENIED.
3